KLAMATH-SISKIYOU WILDLANDS CENTER, ET AL.

192 IBLA 291 Decided March 26, 2018

United States Department of the Interior Office of Hearings and Appeals

Interior Board of Land Appeals N. Suite 300

VA 22203

703-235-3750 703-235-8349 (fax)

WILDLANDS CENTER,

2018-47 Decided March 26, 2018

Appeal and request to stay the effect of a decision of the Field Manager, Grants Pass Field Office, Bureau of Land Management, granting in part and denying in part appellants' protest of its decision to approve the East West Junction Timber Sale. ORM07-TS-13-04.

Motion to dismiss granted; appeals of Cascadia Wildlands and Oregon Wild dismissed; decision affirmed; request for stay denied as moot.

1. Administrative Procedure: Standing

To appeal and seek a stay of a BLM decision, an appellant must have standing under 43 C.F.R. § 4.410. This regulation requires an appellant to demonstrate that i t is both a "party to a case" and "adversely affected" by the decision it seeks to appeal to the Board. The appellant bears the burden to demonstrate both of these elements of standing. I f either element is lacking, the Board must dismiss the appeal for lack of jurisdiction.

2. Administrative Procedure: Standing

When an organization seeks to establish standing, i t must demonstrate either that the organization itself has a legally cognizable interest that is substantially likely to be injured by the decision, or (2) one or more of its members has a legally cognizable interest in the subject matter of the appeal, coinciding with the organization's purposes, that is substantially likely to be injured by the decision.

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3. Administrative Procedure: Burden of Proof

When a party appeals the denial of a protest, i t must establish error in the protest decision. A party cannot establish error in a protest decision by asserting mere disagreement with the decisionmaker. When a party only reiterates the arguments already considered by the decisionmaker below, as i f there were no decision addressing those arguments, this repetition constitutes mere disagreement with the decisionmaker and cannot establish error in the protest decision.

4. Administrative Procedure: Administrative Review

When BLM provided an opportunity for participation in its decision-making process, a party to the case may raise on appeal only those issues i t raised in its prior participation or issues that arose after the close of the opportunity for such participation.

5. Resource Management Plans

A management action is in conformance with a land use plan i f i t is specifically provided for in the plan, or i f not specifically mentioned, is clearly consistent with the terms, conditions, and decisions of the approved plan. An appellant contending that a management action is inconsistent with a governing land use plan must show error in BLM's determination that its action complies with the terms of the land use plan.

APPEARANCES: Richard K. Nawa, Oregon, for Klamath-Siskiyou Wildlands Center,' Nick Cady, Eugene, Oregon, for Cascadia Doug Heiken, Eugene, Oregon, for Oregon Allen Bollschweiler, Field Manager, Grants Pass Field Office, Grants Pass, Oregon, for the Bureau of Land Management.

OPINION BY ADMINISTRATIVE JUDGE IDZIOREK

Wildlands Center (KS Wild), Cascadia Wildlands, and Oregon Wild appeal and request a stay of the effect of a November 17, 2017, decision of the Field Manager, Grants Pass Field Office, Bureau of Land Management (BLM), granting in part and denying in part their protest of BLM's February 27, 2013, decision to approve the East West Junction Timber Sale in

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western Oregon. BLM moves to dismiss Cascadia Wildlands and Oregon Wild from this appeal because they do not have standing to appeal and request a stay.

SUMMARY

Under the Board's regulations, to have standing, an appellant must be a party to the case and have a legally cognizable interest that is substantially likely to be injured by the decision on appeal. Although each of the appellants is a party to the case, Cascadia Wildlands and Oregon Wild have not demonstrated that they are adversely affected by the November 2017 decision because they have not shown that any member of their respective organizations uses any lands or resources that would be impacted by the timber sale. For that reason, we grant BLM's motion and dismiss Cascadia Wildlands and Oregon Wild from this appeal. We therefore adjudicate the appeal on behalf of KS Wild only.

On appeal, KS Wild's burden is to establish error in BLM's decision denying its protest. KS Wild does not meet this burden with respect to arguments it made in its protest and merely repeats on appeal and arguments i t raises for the first time on appeal. Nor does KS Wild meet this burden with its arguments addressing BLM's denial of its protest. KS Wild does not demonstrate error in BLM's compliance with the National Environmental Policy Act (NEPA) because i t does not show that BLM failed to adequately describe the alternative actions i t analyzed or that BLM should have updated the EA with information about possible northern spotted owl nesting sites in the planning area. Also, KS Wild does not show error with respect to BLM's compliance with the Federal Land Policy and Management Act (FLPMA) because it does not show that BLM's decision was inconsistent with the large tree retention standards or other management direction in the governing land use plan. We therefore affirm BLM's decision to grant in part and deny in part KS Wild's protest, and we deny KS Wild's request for a stay as moot.

BACKGROUND

A. The East West Junction Vegetation Management Project and Timber Sale

The East West Junction Project Planning Area is located in Josephine County, Oregon, and totals 35,186 acres.1 BLM proposed forest management activities on 1,200 acres of forest land in the Planning Area to "contribute to

Administrative Record Document Number (AR Doc.) 109, Environmental Assessment for the East West Junction Vegetation Management Project OR-M070-2009-011-EA at 14 (March 2012) [hereinafter EA].

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continuous timber production while restoring dry and moist forest characteristics and reducing wildfire danger."2

BLM prepared an environmental assessment (EA) to evaluate the environmental impacts of the proposed project. In the EA, BLM analyzed a no-action alternative and two action alternatives.3 Under the proposed action alternative, BLM would treat 235 acres in the East West Junction Project Planning Area by variable density thinning, 32 acres by variable retention harvest, 262 acres by pre-commercial thinning, 325 acres by density management/hazardous fuel reduction, and 642 acres by hazardous fuel reduction.4 Under the second action alternative, BLM would not authorize variable density thinning or variable retention harvest and would instead treat 222 acres by commercial thinning, 201 acres by pre-commercial thinning, 366 acres by density management/hazardous fuel reduction, and 646 acres by hazardous fuel reduction.5 Under both action alternatives, BLM would authorize 0.4 miles of temporary route construction, 0.5 miles of temporary route and 0.8 miles of road renovation and

In the EA, BLM concluded that the action alternatives were consistent with the 1995 Medford Resource Management Plan (RMP), which incorporates, as management direction, the 1994 Standards and Guidelines for Management of Habitat for and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl, commonly referred to as the Northwest Forest Plan.7

In February 2013, BLM approved the East West Junction Timber Sale, which it characterized as "a portion" of the proposed action in the EA.8 The timber sale

Id. at 13, 14. Id. at 27-39. Id. at 28. Id. at 30. Id. at 28-29, 30. Id. at 15; AR Doc. 336, Record of Decision for the Medford District Resource

Management Plan at 18 (June 1995) [hereinafter RMP] (explaining that the RMP incorporates AR Docs. 344 and 343, Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl (Apr. 13, 1994) [hereinafter Northwest Forest Plan] and Attachment A, Standards and Guidelines for Management of Habitat for Late-Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl [hereinafter Northwest Forest Plan Standards and Guidelines]). AR Doc. 67, Revised Decision Documentation for the East West Junction Timber

Sale at 1, 5 (Feb. 27, 2013) [hereinafter DD].

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would include forest management on 155 acres of BLM-managed lands with matrix and riparian reserve land use allocations in the Planning Area.9 Specifically, the timber sale would include variable density thinning on 135 acres and variable retention harvest on 20 acres.10 To facilitate harvest activities, BLM authorized 0.2 miles of temporary route construction, 0.28 miles of temporary route re­construction, and 0.43 miles of road renovation and improvement.11 BLM required all project activities to implement best management practices and project design features to minimize impacts to the environment.12

B. Appellants' Protest of the Timber Sale and Appeal to the Board

On February 28, 2013, BLM published a Notice of Sale for the timber sale.13

The appellants protested the sale, alleging, among other things, deficiencies in BLM's EA and inconsistencies with the governing land use plan.14 On November 17, 2017, BLM granted the protest with respect to red tree vole buffers and access to a certain section of the project area and denied the protest with respect to the rest of the issues the appellants raised.15

The appellants appealed BLM's denial of their protest to the Board and asked us to stay the implementation of the timber sale.16 The appellants' appeal and stay request included a statement of reasons for their appeal.17

In its response to the appellants' stay request and statement of reasons, BLM asked the Board to dismiss Cascadia Wildlands and Oregon Wild from the appeal for lack of standing.18 Because standing to appeal must be established before the

Id. at 5. Id. at 1. Id. at 2. Id. at 5. AR Doc. 68, Legal Notice (Feb. 28, 2013). AR Doc. 62, Administrative Protest of the East West Junction Decision

Documentation (Mar. 13, 2013) [hereinafter Protest]. AR Doc. 8, Protest Decision: Administrative Protest of the East West Junction

Timber Sale Decision Documentation by Wildlands Center, Cascadia Wildlands, and Oregon Wild at 13 (Nov. 17, 2017) [hereinafter Protest Decision].

Notice of Appeal, Statement of Reasons and Request for Stay of the East West Junction Timber Sale [hereinafter SOR].

at 9-20. BLM Transmittal of Notice of Appeal and Project Case File and BLM Response

to Request for Stay and Statement of Reasons at 2, 3 [hereinafter BLM Response].

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may adjudicate an appeal and request to stay the effect of a challenged B L M decision, we held the appellants' request for a stay in abeyance until we determined whether they have standing to appeal.19

BLM also responded to the statement of reasons and opposed any stay.20

This appeal has been fully briefed.

STANDING

A. The Regulatory Requirement to Have Standing to Appeal to the Board and Petition to Stay a Decision

To appeal and seek a stay of a BLM decision, an appellant must have standing under 43 C.F.R. § This regulation requires an appellant to demonstrate that i t is both a "party to a case" and "adversely affected" by the decision i t seeks to appeal to the Board.22 The appellant bears the burden to demonstrate both of these elements of standing.23 I f either element is lacking, the Board must dismiss the appeal for lack of jurisdiction.24

A party to a case is adversely affected by a decision "when that party has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest."25 A legally cognizable interest may be an economic or property interest in the affected public lands, or cultural, recreational, or aesthetic use and enjoyment of those lands.26 A party must show that i t has at

Order: Petition for Stay Held in Abeyance (Jan. 11, 2018). BLM Response at 4-25. See also 43 C.F.R. § 4.21(a)(2) ("a petition for a stay may be filed only by a party

who may properly maintain an appeal"). Id. § 4.410(a). Cascadia Wildlands, 188 IBLA 7, 9 (2016); Western Watersheds Project (WWP),

185 IBLA 293, 298 (2015). Cascadia Wildlands, 188 IBLA at 9; WWP, 185 IBLA at 298; WildEarth

Guardians, 183 IBLA 165, 170 (2013). 43 C.F.R. § 4.410(d). Cascadia Wildlands, 188 IBLA at 9-10; WWP v. BLM, 182 IBLA 1, 7 (2012); The

Fund for Animals, Inc., 163 IBLA 172, 176 (2004); Mining Corp., 151 IBLA 190, 195 (1999).

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least one of these types of interest in the a mere concern for a problem wi l l not suffice.27

[2] To demonstrate that the decision has caused or is substantially likely to cause injury to a legally cognizable interest, the party must make colorable allegations, supported by specific facts, sufficient to establish a causal relationship between the approved action and the injury alleged.28 When an organization seeks to establish standing, it must demonstrate either that the organization itself has a legally cognizable interest that is substantially likely to be injured by the decision, or (2) one or more of its members has a legally cognizable interest in the subject matter of the appeal, coinciding with the organization's purposes, that is substantially likely to be injured by the decision.29

When an organization seeks to establish standing based on an injury to the organization itself, i t must demonstrate a nexus between the challenged action and the claimed injury to the organization's mission and ongoing activities.30 We require a and demonstrable injury to the organization's activities'" that consequently drains the organization's resources.31 "A mere interest in a perceived problem, no matter how longstanding the interest or how qualified the organization may be in evaluating the problem, is not sufficient by itself to render the organization 'adversely affected' . . .

When an organization seeks to establish standing on behalf of one or more of its members instead of claiming an injury to the organization itself, the organization must make colorable allegations, supported by specific facts forth in an affidavit, declaration, or other statement, which establish a causal relationship between the approved action and alleged injury to a member's legally cognizable interest.33 The information submitted by a member of an organization should "provide as much specific evidence as possible about what interests are

The Fund for Animals, Inc., 163 IBLA at 176; Mining Corp., 151 IBLA at 195. 28 WWP, 189 IBLA 310, 313 (2017); The Fund for Animals, Inc., 163 IBLA at 176 (quoting Payne, 159 IBLA 69, 73 (2003)); Colorado Open Space Council, 109 IBLA 274, 280 (1989). 29 WWP, 192 IBLA 72, 78 (2017); Board of County Commissioners of Pitkin County, Colorado (Pitkin County), 186 IBLA 288, 296-97, 305-10 (2015).

Pitkin County, 186 IBLA at 308. Id. at 310 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)). Id. at 308. Cascadia Wildlands, 188 IBLA at 10; Native Ecosystems Council, 185 IBLA 268,

273 (2015); WildEarth Guardians, 183 IBLA at 170.

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allegedly injured and what the connections are between those interests and the decision i t seeks to appeal."34

B. Cascadia Wildlands and Oregon Wild Have Not Demonstrated Standing to Appeal

A l l three appellants are parties to the case because each protested the proposed timber sale.35 Standing therefore depends on whether each appellant has demonstrated that i t is adversely affected by BLM's decision.

In their Notice of Appeal, the appellants affirmatively assert that each organization has standing to appeal BLM's decision because they "regularly visit and enjoy BLM forests located in the timber sale units proposed for logging in the East West Junction timber sale."36 They further assert that their organizations have "a long-standing interest in the management of public forestlands in the [BLM] Medford District, and the right to make BLM comply with resource management plans and federal policies."37

In support of their claim of standing, appellants submit the declaration of Richard K. Nawa, who is a KS Wild employee and member. Mr. Nawa states that he often hikes, photographs, and explores the mature and old growth forests in the Grants Pass Resource Area of the Medford District.38 He explains that he has spent, and has "definite plans" to continue to spend, "considerable time" in the forests subject to the East West Junction Timber Sale "to appreciate the natural beauty and native biodiversity that are unique to intact undisturbed forests."39 Mr. Nawa asserts that his "interest in intact forests" for the ecological, recreational, and aesthetic values they provide would be directly harmed by the logging of trees in the East West Junction Timber Sale.40

Through Mr. Nawa's declaration, KS Wild has established its standing to appeal BLM's approval of the East West Junction Timber Sale. KS Wild has identified a member with a legally cognizable interest - an interest in recreating in

The Coalition of Concerned National Park [Service] Retirees, 165 IBLA 79, 88 (2005).

See 43 C.F.R. § 4.410(b) (a party to a case includes an entity that protested a proposed Protest at 1.

3. Id. at 5. Declaration of Richard K. Nawa, 3 (Nawa Declaration). Id. 3, 4, 9. Id. 5, 8.

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and enjoying intact forests - that coincides with KS Wild's purposes to preserve and restore biological diversity in southwest Oregon forests. Mr. Nawa's declaration includes colorable allegations that implementation of the East West Junction Timber Sale is substantially likely to injure his recreational and aesthetic interests in native biodiversity in intact forests. Therefore, KS Wild has standing to appeal BLM's decision and request a stay.

Mr. Nawa's declaration does not, however, establish standing on behalf of Cascadia Wildlands and Oregon Wild. Mr. Nawa does not identify himself as a member or employee of either of those organizations.42 Although the appellants identify an employee and member of each organization for purpose of bringing the appeal on behalf of each organization, the appellants do not provide any information indicating that the representatives of Cascadia Wildlands and Oregon Wild have ever visited or used any land or resources affected by the timber sale.43 The appellants have not submitted a declaration of anyone who is a member of Cascadia Wildlands or Oregon Wild, nor have they alleged that any identified member of either organization has a legally cognizable interest that is likely to be injured by the timber sale. Cascadia Wildlands and Oregon Wild therefore have not met their burden to show that one or more of its members has a legally cognizable interest in the subject matter of the appeal, coinciding with the organization's purposes, that is substantially likely to be injured by the decision.44

Furthermore, neither organization has shown that the organization itself has a legally cognizable interest that is substantially likely to be injured by the decision. The appellants state that the mission of Cascadia Wildlands is "to educate, organize and agitate for a more compassionate and responsible relationship with the ecosystems of our bioregion."45 The mission of Oregon Wild is "to protect and restore Oregon's wild lands, wildlife, and waters as an enduring legacy" and "to permanently protect federal forest-lands and protect and restore habitat for native

3. See Nawa Declaration, 1 (identifying Mr. Nawa as an employee and member of

KS Wild); SOR at 5 (same). See SOR at 5 (identifying Nick Cady as an employee and member of Cascadia

Wildlands and Doug Heiken as an employee and member of Oregon Wild, each of which is "authorized to bring this appeal on behalf of our respective organizations").

See, e.g., Cascadia Wildlands, 188 IBLA at 11 (no standing where "Appellants have not identified which of their members actually use the timber sale area" and "have not identified any specific instances in the past when a member or members have used the area, nor have they documented their members' use in a supporting statement of any kind.")

4.

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While both of these groups have expressed their interest in protecting Oregon forests for their aesthetic values and ecosystems, neither of them has alleged or demonstrated that any of their ongoing activities are negatively impacted, now or in the future, by BLM's decision to approve the East West Junction Timber Sale. They have not alleged or shown that their missions wi l l be frustrated or their resources drained because of this particular timber sale.47

Consequently, Cascadia Wildlands and Oregon Wild have not demonstrated that they have standing to appeal. We therefore grant BLM's motion to dismiss Cascadia Wildlands and Oregon Wild from this appeal, and adjudicate KS Wild's appeal only.

MERITS OF KS WILD'S APPEAL

A. KS Wild Must Show Error in BLM's Protest Decision

[3] To succeed on the merits of its appeal, KS Wild must show error in BLM's decision to deny its protest.48 A party cannot establish error in a protest decision by asserting mere disagreement with the decisionmaker.49 When a party only reiterates the arguments already considered by the decisionmaker below, as i f there were no decision addressing those arguments, this repetition constitutes mere disagreement with the decisionmaker and cannot establish error in the protest decision.50 For example, we have explained that "when appellants have filed a protest based on alleged NEPA violations, but BLM thoroughly discussed and answered the protest, and the appeal to the Board does not analyze how BLM erred in its response to the protest, the Board wi l l summarily affirm the decision being appealed."51

Id. See Pitkin County, 186 IBLA at 310 (explaining that an organization may show

an adverse effect from actions contrary to its mission i f the actions cause a diversion of resources or inhibit daily operations).

Wallace Forest Conservation Area Advisory Committee (Wallace Forest), 192 IBLA 108, 112 (2017); In re North Trail Timber Sale, 169 IBLA 258, 262 (2006).

Wallace Forest, 192 IBLA at 112; In re North Trail Timber Sale, 169 IBLA at 261.

Klamath-Siskiyou Wildlands Center, 190 IBLA 245, 252 (2017); Klamath-Siskiyou Wildlands Center, 187 IBLA 287, 288 (2016); In re Mill Creek Salvage Timber Sale, 121 IBLA 360, 362 (1991). Klamath-Siskiyou Wildlands Center, 187 IBLA at 288-89.

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[4] Additionally, a party appealing the denial of a protest "may only raise on appeal issues i t raised in its protest or issues that arose after the close of the protest period."52 The rationale for this rule is that it maintains a logical framework for decisionmaking within the Department by allowing the initial decisionmaker to confront objections to proposed actions before the Board reviews those objections on appeal.53 Accordingly, when the appellant did not raise an argument in its protest, and that issue did not arise after the protest period, we wi l l not consider that argument.54

In its appeal, KS Wild makes three types of arguments: repeats arguments it made in its protest without addressing how BLM's decision denying its protest was in (2) i t raises new arguments that i t did not raise in its

and (3) it indicates that BLM's responses to its protest on several issues related to NEPA and FLPMA compliance were insufficient. We address each category of arguments below.

B. KS Wild Does Not Show Error by Merely Repeating Arguments in Its Protest

In its appeal, KS Wild repeats several arguments i t made in its protest, sometimes verbatim, without stating how or why BLM's denial of its protest was in error. For example, KS Wild repeats two arguments from its protest in its statement of reasons, nearly verbatim: the argument that BLM's decision to approve the timber sale violates the Medford because i t would "downgrade" northern spotted owl nesting habitat,56 and the argument that BLM erred by prescribing variable retention harvest for East West Junction Project Forest Management Units 12A and 12B because those units are in a dry forest where variable retention harvest is inappropriate.57 KS Wild makes a third argument in

Colorado Wild Public Lands Inc. (Colorado Wild), 189 IBLA 392, 410 (2017), petition for review filed, No. (D. Colo. June 26, 2017); 43 C.F.R. § 4.410(c) ("Where the Bureau or Office provided an opportunity for participation in its decisionmaking process, a party to the case . . . may raise on appeal only those issues: Raised by the party in its prior or (2) That arose after the close of the opportunity for such

Colorado Wild, 189 IBLA at Great Basin Resource Watch, 185 IBLA 1, 16 (2014) (quoting Southern Utah Wilderness Alliance, 128 IBLA 52, 59 (1993)).

See Colorado Wild, 189 IBLA at 410. Record of Decision and Resource Management Plan, Medford District

(June 1995). SOR at 10-11; Protest at 3-4. SOR at 17; Protest at 14; see EA at 31-35 (identifying the forest management

units).

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its statement of reasons that, although not repeated from its protest word-for-word, repeats the substance of arguments in the protest without any showing of error in BLM's protest decision. Specifically, KS Wild argues on appeal that BLM erred by implementing "ecological forestry" principles58 for a project-level timber sale before i t completed a programmatic NEPA analysis of the impacts of ecological forestry and an updated RMP for the Medford District.59 This argument also appears in KS Wild's protest: "The selected alternative [implementing ecological forestry] requires a RMP amendment and an [environmental impact statement because it significantly changes anticipated outputs from the RMP . . .

BLM thoroughly discussed and answered KS Wild's arguments in its protest KS Wild's appeal to the Board does not analyze how BLM erred in its

response to the protest. By merely repeating these three arguments without acknowledging or addressing BLM's response to the arguments in the protest decision, KS Wild does not show error in that decision.

C. KS Wild Raises the Risk of Windthrow For the First Time on Appeal

In addition, for the first time on appeal, KS Wild argues that the timber sale is inconsistent with the RMP because i t increases the risk of damage to homes and safety hazards from windthrow (a tree or trees uprooted or felled by the wind) . 6 2

KS Wild asserts that local home owners and its representative discussed this risk during a BLM field trip in April But BLM has no record of this issue being raised, and KS Wild did not raise i t in either its comments on the EA or its protest.64 Because KS Wild did not make this argument in its protest, and this issue did not arise for the first time after the protest period, we wi l l not consider i t further.

See EA at 15 (identifying an objective of the proposed action as ecological forestry principles and plant communities to restore characteristic structure and composition, ecological conditions, and ecosystem functions").

9. Protest at 3. See Protest Decision at 3-6. SOR at 16-17; see RMP at 117 (definition of windthrow). SOR at 17. Answer at 19; AR Doc. 92, Comments Regarding the East West Junction Project

EA (Apr. 10, 2012); Protest.

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D. KS Wild Does Not Otherwise Show Error in BLM's Decision

KS Wild does not critique, mention, or even cite to BLM's protest decision in its appeal. But it indicates that BLM's responses to its protest on several issues related to NEPA and FLPMA compliance were insufficient.

1. KS Wild Does Not Show Error in BLM's NEPA Compliance

a. BLM Did Not Err in Describing the Alternative Actions

The regulations implementing NEPA require agencies to include a brief discussion of appropriate alternatives in an EA.6 5 KS Wild contends that because the major difference among the two alternative actions is the intensity of logging on each acre in each harvest unit, BLM should have estimated the number of large and small trees that would be retained per acre under each alternative.66 KS Wild argues that without these estimates, BLM did not adequately describe the alternative actions in a way that would inform the public and the decisionmaker.67

In its decision denying KS Wild's protest on this point, BLM asserted that i t described the alternatives and the impacts of those alternatives in sufficient detail to enable BLM to make an informed decision.68 BLM stated that i t disclosed in the EA the "relevant and applicable information available to the agency," and described in the EA the existing condition of forested stands proposed for harvest, the actions proposed under each alternative for each unit, and the effect of each alternative on stand condition and vegetation.69 BLM explained that under the regulations implementing NEPA, it was not required to do more in an EA, which is intended to be a "concise" document that contains only "brief discussions . . . of alternatives . . . [and] of the environmental impacts of the proposed action and alternatives . . .

On appeal, KS Wild's response to BLM's explanation is that "BLM has failed to provide a compelling reason for why important data they produce to ascertain logging outcomes is withheld and not summarized in the EA to inform the public and decisionmaking."71 KS Wild asserts that BLM had data about pre- and post-

C.F.R. § 1508.9(b); 43 C.F.R. § 46.310(a). at 9-10. Id. Protest Decision at 4-5. Id. 40 C.F.R. § 1508.9 (quoted in Protest Decision at 4). 10.

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tree densities, which it provided to Mr. Nawa in a January 12, 2012, letter, but BLM failed to include this information in the

BLM's failure to include this information does not render the EA flawed. As BLM stated, it disclosed in the EA information in sufficient detail to enable i t to make an informed decision. Moreover, KS Wild is attempting to shift the burden of proof to BLM. KS Wild has the burden to show error in BLM's protest decision,73

and i t does not do so by simply identifying information that could have been included in the EA and asking BLM to justify its omission. In light of the purpose of an EA and the direction in the regulations that an EA be concise, the absence of this information from the EA does not show legal error.74 Nor does i t show that the decisionmaker was not adequately informed of the impacts of the different alternatives. KS Wild's preference for more information does not demonstrate that BLM's description of alternatives was inadequate.

b. Did Not Err by Not ting the EA

The regulations implementing NEPA require an agency to supplement an in certain situations. For example, the regulations specify that BLM must

supplement an EIS when there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.75 This regulation does not apply to however, according to BLM guidance, BLM wi l l prepare a new EA when new circumstances or information arises that alters the validity of the analysis in an EA before BLM implements the action.76

KS Wild argues that BLM failed to update the EA with information revealed after KS Wild's protest related to the northern spotted owl (NSO), which is listed as

Id. Wallace Forest, 192 IBLA at 112; In re North Trail Timber Sale, 169 IBLA at

262. See Confederated Tribes the Goshute Reservation, 190 IBLA 396, 404 (2017)

("NEPA and its implementing regulations do not require BLM to provide 'quantified or detailed information' in an EA.").

40 C.F.R. § 1502.9(c)(1)(h). BLM's NEPA Handbook at 29, available at https://www.blm.gov/

_BLM_Policy_Handbook_hl790-l.pdf (last visited Mar. 23, 2018).

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threatened under the Endangered Species Act.7 7 Specifically, KS Wild states that residents provided BLM tape recordings and photos of owls in two of the timber sale units that "raise the possibility of NSO presence in the KS Wild argues that BLM should have conducted adequate protocol NSO surveys to demonstrate the absence of the owls in the timber sale units and alerted the U.S. Fish and Wildlife Service about the possibility of their presence.79 KS Wild also that the BLM has not been monitoring the area for possible NSO since the [U.S. Fish and Wildlife Service] Biological Opinion [for the timber sale] was issued."80

BLM replies that it has in fact "appropriately conducted protocol NSO surveys, which have not indicated a need to inform the Service regarding any new information or update the NEPA analysis."81 BLM explained, and cited documentation in the record, that i t conducted "[s]pot check surveys . . . where suitable nesting habitat occurs in and adjacent to proposed project units in 2012 with no detections, and again in 2017 with no detections."82 BLM also investigated the residents' reports of possible NSO in the project area and detected no NSO.83

BLM represents that i t plans spot-check surveys for 2018 to ensure that no NSO are nesting in potential NSO nesting habitat in or immediately adjacent to proposed timber sale units.84

After reviewing KS Wild's allegations and the information provided by BLM, we find that KS Wild has not identified new circumstances or information that alters the validity of the analysis in the EA. KS Wild's arguments amount to

that BLM failed to conduct adequate surveys and speculation that BLM has not been disagreement with the

SOR at 18-20; see Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Northern Spotted Owl, 55 Fed. Reg. 26,114 (June 26, 1990) (final rule).

19. Id. Doc. 217, Biological Opinion on the Summer 2010 Timber Harvest

Activities Proposed by the Medford District of the Bureau of Land Management that are likely to adversely affect the northern spotted owl (FWS Reference Number 13420-2010-F-0107) (July 19, 2010).

Answer at 21. Id. at 22; AR Doc. 2, NSO Surveys in East West at 1-58. Answer at 22; AR Doc. 14, E-mail Exchange Regarding Owl Inquiry from Rich

Nawa and Nina Horsley (May 2016). Answer at 22; see AR Doc. 2, NSO Surveys in East West at 60 (e-mail from BLM

Lead Wildlife Biologist stating "intent . . . to complete 2 consecutive years of spot checks" (Jan. 2, 2018)).

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conclusions of BLM staff that, based on their observations, there have been no NSO identified in the timber sale units. Consequently, KS Wild has not shown that BLM should have updated its EA or otherwise shown error in BLM's decision.

2. KS Wild Does Not Show Error in BLM's FLPMA Compliance

[5] FLPMA requires BLM to "manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans" BLM develops.85 A management action is in conformance with a land use plan i f i t is "specifically provided for in the plan, or i f not specifically mentioned, [is] clearly consistent with the terms, conditions, and decisions of the approved plan or plan

An appellant contending that a management action is inconsistent with a governing land use plan under FLPMA must show error in BLM's determination that its action complies with the terms of the land use plan.87

For the East West Junction Timber Sale, the governing land use plan is the Medford RMP, which incorporates the Northwest Forest Plan Standards and Guidelines. KS Wild makes two arguments that BLM's decision approving the timber sale did not comply with the Medford RMP, each of which we address below.

a. BLM's Decision Is Consistent with the Large Tree Retention Standards

The Medford RMP provides management direction for silvicultural practices in the Medford District, including direction "[f]or structural retention systems [in the Southern General Forest Management Area, to] retain on the average 16-25 large green trees per acre in harvest units."88 In its protest and on appeal, KS Wild asserts that BLM did not quantitatively demonstrate compliance with this standard for all units of the timber sale.89

In its protest decision, BLM granted KS Wild's protest with respect to tree retention in two variable retention harvest units of the timber sale and "marked

43 § 1732(a) (2012). 43 C.F.R. § 1601.0-5(b) (defining or WWP, 191 IBLA 351, 378-79 (2017). RMP, Appendix E (Silvicultural Systems Utilized in the Design of the RMP), at

193. SOR at 11 (citing RMP, Appendix E (Silvicultural Systems Utilized in the Design

of the RMP), at 193; and Northwest Forest Plan Standards and Guidelines at C-42 ("For lands administered by the BLM in Oregon south of Grants Pass, retain 16 to 25 large green trees per acre in harvest units.")).

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additional trees in units 12A and 12B to ensure an adequate number of leave trees are retained to meet the 16-25 trees per acre standard within harvest units as required by the RMP."90 BLM documented this correction in a Determination of NEPA Adequacy, completed cruise tally sheets (tree measurements for forest stands) to demonstrate that the standard is met in units 12A and 12B, and stated that i t would modify the timber contract to reflect the additional retained trees.91

On appeal, KS Wild acknowledges that BLM marked additional trees in units 12A and 12B for retention but argues that BLM's selection of trees still does not satisfy the RMP standards, particularly the requirement to retain "[l]arge conifers [that] proportionally represent the total range of tree size classes greater than 20 inches in diameter."92 KS Wild provides information i t compiled identifying larger trees in one of the units that BLM did not mark for retention.93 KS Wild further argues that BLM's method of marking the trees was confusing and could result in loggers cutting trees that should be retained.94 KS Wild also alleges that BLM "failed to demonstrate with cruise tally sheets or any other documented method that 16-25 large trees are being retained" in units subject to variable density thinning.95 KS Wild argues that the 1994 Northwest Forest Plan requires retention of 16-25 trees per acre for all harvest units, including thinning units.96

The information KS Wild provided does not demonstrate error in BLM's protest decision. The fact that KS Wild identified larger trees in unit 12A that were not marked for retention does not mean that BLM did not identify the required number of large trees for retention, and it does not overcome the documentation BLM provided to show that it satisfied the 16-25 large tree-per-acre standard in units 12A and 12B.97 Also, even i f BLM's method of marking the trees is confusing to KS Wild, that fact does not show that what BLM did was inconsistent with the RMP.

Protest Decision at 6. Id. (citing AR Doc. 9, Determination of NEPA Adequacy

AR Doc. 4, Total Additional Tree Retention Unit 9-12 (including data on marked trees and Field Cruise Cards).

SOR at 12 (citing RMP, Appendix E, at 193). 13.

Id. Id. Id. at 15,' see Northwest Forest Plan Standards and Guidelines at C-42 ("For

lands administered by the BLM in Oregon south of Grants Pass, retain 16 to 25 large green trees per acre in harvest units.").

See, e.g., AR Doc. 4, Total Additional Tree Retention Unit 9-12; AR Doc. 113, East West Marking Guidelines.

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With respect to KS Wild's argument that BLM was required to demonstrate compliance with the 16-25 tree-per-acre standard in the thinning units, we do not read either the Medford RMP or the Northwest Forest Plan as imposing this requirement. In lands designated as matrix land use allocations administered by BLM in Oregon south of Grants Pass, the Northwest Forest Plan requires BLM to "retain 16 to 25 large green trees per acre in harvest units."98 Similarly, on those same lands, the Medford RMP directs BLM to "retain at least 16 to 25 large, green conifer trees per acre in regeneration harvest units."99 While the language in the Northwest Forest Plan does not include the word "regeneration" before "harvest units," BLM has repeatedly interpreted the language in the Northwest Forest Plan and the language in the RMP as meaning the same the 16-25 green tree retention standard applies only to regeneration harvest units.1 0 0

This interpretation is reasonable in light of the purpose of regeneration harvesting as compared to thinning. In the EA, BLM explained that the goal of variable retention harvest (a type of regeneration harvest)101 is to "substantially reduce stand density."102 The goal of commercial thinning is to "restore more characteristic and sustainable ecological conditions and functions," such that the forest "would retain the key habitat features for northern spotted owl habitat."103

Thinning would result in the stand retaining at least 60 percent canopy cover, large trees, and multistoried canopy, and the "habitat classification of the stand following

Northwest Forest Plan Standards and Guidelines at C-42. RMP at 39, 73. See, e.g., Protest Decision at 5-7 (explaining how its prescriptions for both

variable retention harvest, including application of the standard, and variable density thinning are consistent with the RMP); DD Attachment 1 (Public Comment on the East West Junction Project and EA and BLM Response) at 26-27, 48 (explaining the difference in treatment goals for variable retention harvest, which applies the 16-25 tree per acre standard, and variable density thinning, which does not); EA at 21 (including the 16-25 tree standard in the description of variable retention harvest).

See Southwestern Oregon Record of Decision and Approved RMP at (August 2016) (defining regeneration harvest or variable retention harvest" as "[a]n approach to regeneration harvesting that is based on the retention of structural elements or biological legacies from the harvested stand for integration into the new stand to achieve various ecological objectives . . . . Variable-retention regeneration harvest is synonymous with green-tree retention, retention harvest, retention forestry.")

22-23.

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treatment would be the same as the pretreatment habitat classification."104

Typically, more trees would be removed from a unit by regeneration harvesting than by thinning.1 0 5

Our conclusion that the Medford RMP is consistent with the Northwest Forest Plan is supported by BLM's explanation of the relationship between the RMP and the Northwest Forest Plan:

The [Northwest Forest Plan] . . . requires the Bureau to incorporate the land-use allocations and standards and guidelines in that decision in the Bureau's RMPs for western Oregon. The RMP is intended to be consistent with the [Northwest Forest Plan]; any apparent inconsistencies are oversights or misinterpretations of the [Northwest Forest Plan]

KS Wild has not shown a reason to disregard BLM's consistent interpretation of its RMP or established that BLM was required to demonstrate compliance with the 16-25-tree standard in thinning units.

KS Wild also argues on appeal that the timber sale is inconsistent with the direction in the RMP that BLM "[m]anage to retain a minimum of 40 percent canopy cover at the stand level in most regeneration harvest units, except for units of the pine series or where stand condition or site characteristics require lower levels."107 KS Wild states that "[c]anopy cover would certainly drop to below 40% in unit 12B due to the large gap and possibly drop to below 40% in unit 12A and other [variable density thinning] units."108 KS Wild cites no evidence supporting this, and its assertions about "possibilities" are speculative. In fact, BLM found that retention of 16 trees per acre in units 12A and 12B would result in 55 percent canopy cover.109

Id. See EA at 22 ("This visual representation [of variable density thinning] would

also be similar to the Variable Retention Harvest proposed for unit 9-12 [except that u]nder Variable Retention Harvest, the denser portions of the stand depicted above would have slightly less tree retention."); id. at 19-22 (comparing variable density thinning and variable retention harvest).

RMP at 18. Id., Appendix E, at 192 (Resource Condition Objectives for matrix lands in the

Southern General Forest Management Area in the Medford District). SOR at 18. Answer at 20-21 (citing AR Doc. 4, Total Additional Tree Retention Unit 9-12).

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We conclude that KS Wild has not shown that BLM's decision is inconsistent with the RMP's tree-retention standards.

b. BLM's Decision Is Consistent with the RMP's Management Direction for Rural Interface Areas

In its protest, KS Wild opined that allowing variable retention harvest in units 12A and 12B "would inappropriately increase fire hazard immediately adjacent [to] residences on Logan Cut Drive" and that BLM should have reduced fire hazard by choosing a combination of density management, pre-commercial thin, radial thinning, and fuel treatments.110 In the protest decision, the Field Manager did not directly address this subject, although he did find that BLM "appropriately accounted for human health and safety in the East West project" and that BLM's decision complies with the Medford RMP.1 1 1

On appeal, KS Wild refines its position, arguing that the timber sale violates the objectives and management direction set forth in the RMP for rural interface areas, which are areas where BLM-managed lands are adjacent to, or intermingled with, privately owned lands zoned for or already having residential development.112

Specifically, KS Wild asserts that, in light of BLM's admission that variable retention harvest in units 12A and 12B wi l l increase the risk of fires for 5 to 20 years, BLM is violating the direction in the RMP to consider the personal health and safety interests of nearby rural residential land owners, work with local individuals and groups to address concerns related to impacts of proposed management activities, and use design features and mitigation measures, including different harvest regimes, to avoid or minimize impacts to health, life, and property.113 KS Wild states, "BLM ignored fire hazard concerns about selecting regeneration harvest immediately adjacent [to] residences and failed to select 'different harvest regimes' that would reduce rather than increase fire hazard."114

KS Wild has not demonstrated that BLM's decision is inconsistent with the RMP. The record shows that BLM followed the RMP's direction to identify, consider, and address the concerns of nearby residential landowners, and authorized actions to avoid or minimize impacts to their health, property, and quality of l i fe . 1 1 5 BLM acknowledged the existing risk of wildfire in the East West

Protest at 13. Protest Decision at 3, 6, 11-12. RMP at 112 (definition of rural interface areas). SOR at 15-16 (citing DD at 21; RMP at 87).

Id. at 16. RMP at 87.

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Planning Area and disclosed the impacts of its proposed action on fire hazards, including an increase in risk in the short term and a decrease or minimal change in the long BLM engaged the public during preparation of its EA and responded to public comments, including comments from nearby residents on the risk of wildfire.1 1 7 And BLM modified the timber sale contract in response to comments i t received from nearby landowners to accommodate their concerns about increased fire hazard and increased visibility from project activities.118 Accordingly, the record shows that BLM identified, considered, and addressed the concerns of neighboring landowners, and KS Wild has not shown error in BLM's conclusion that its decision is consistent with the governing RMP.

3. KS Wild Does Not Show Error in BLM's Compliance with BLM Medford District Policy

Finally, on appeal, KS Wild asserts that BLM "does not appear to be implementing" the 2015 Medford District Guide for Planning and Implementing Vegetation Management Projects, which BLM developed after the protest period.119

KS Wild asserts that the Guide requires oversight monitoring of each East West Junction unit before logging and post-harvest canopy monitoring.120

BLM's compliance with the Guide, however, is not relevant to this appeal, which concerns whether BLM properly denied in part KS Wild's protest of the decision authorizing the timber sale. We therefore wi l l not consider KS Wild's argument about BLM's post-sale activities.

See, e.g., EA at 53-55 (existing wildfire risk and risk to homes close to BLM-managed land), 56 (impacts of no-action alternative include no short-term increase in fire hazard but a long-term increase), 57-60 (impacts of action alternatives include 5-20-year increased risk of fire and minimal long-term impact).

See, e.g., DD at 2-3 (reviewing public outreach efforts and public comment opportunities); DD, Attachment 1 (Public Comment on the East West Junction Project and EA and BLM Response) at 41-42 (responding to comment about increased fire hazard near home due to slash), 46-47 (responding to comment about increased fire hazard in wildland urban interface); AR Doc. 13, East West Junction Public Field Visit (June 9, 2016) (BLM notes from public field visit, documenting, among other concerns, community concern about fire hazards).

Protest Decision at 2-3; Answer at 18-19; see AR Doc. 1, East West Junction Draft Contract Modification.

SOR at 18 (citing AR Doc 27, Medford District Guide for Planning and Implementing Vegetation Management Projects (September 2015)).

Id.

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CONCLUSION

We conclude that Cascadia Wildlands and Oregon Wild do not have standing to appeal. We also conclude that although KS Wild has standing, i t has not shown error in BLM's decision to deny in part KS Wild's protest of the East West Junction Timber Sale.

Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior,121 we grant BLM's motion to dismiss the appeal with respect to Cascadia Wildlands and Oregon Wild, and we affirm BLM's decision denying in part and granting in part KS Wild's protest of the East West Junction Timber Sale. We also deny KS Wild's request for a stay as moot.

I concur:

43 C.F.R. § 4.1.

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